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Case Details

Case Details
National ID AP de Barcelona (Sección 17ª) Sentencia no. 640/2011 de 21 diciembre
Member State Spain
Common Name link
Decision type Court decision in appeal
Decision date 21/12/2011
Court Provincial Court of Barcelona
Subject
Plaintiff FINANCIERA EL CORTE INGLÉS EFC S.A
Defendant Unknown
Keywords distance contracting, off-premises contract, right of withdrawal

Consumer Rights Directive, Chapter 3, Article 6, 1., (h) Consumer Rights Directive, Chapter 3, Article 9 Consumer Rights Directive, Chapter 3, Article 10

In distance contracts it is enough to place a clear and comprehensible warranty of return clause in a catalogue sent to the consumer in order to comply with the obligation of prior information of the consumer's right of withdrawal; however, the obligation to deliver the document for exercising the right of withdrawal still remains.
The defendant acquired a computer and printer through a catalogue ("La Tienda en Casa") of the plaintiff in which there was a clear, comprehensible and visible warranty of return. Once the defendant received the goods, he claimed that the printer was not in conformity with the contract. As a result, the printer was replaced by another printer of higher quality. The consumer was still not satisfied with the computer and exercised his right of withdrawal. The plaintiff alleges that the defendant did not meet the term for exercising his right of withdrawal which was 7 calendar days, according to the warranty of return mentioned in the catalogue. The defendant claims that the applicable term for exercising this right was the term provided for by the law for cases where the trader fails to meet his prior information obligations.
The Court decided that it is sufficient to include a clause in a catalogue, stating the conditions of the right of withdrawal, in order to inform de consumer, even if it does not mention the expression "right of withdrawal", as long as it renders clear that the consumer has the right to return the goods. However, whilst that is sufficient for the prior information obligation, it does not suffice for complying with the obligation to deliver to the consumer a form for exercising the right of withdrawal.
Is including a warranty of return in a catalogue enough in order to comply with the obligation of prior information of the consumer's right of withdrawal? What if a document for exercising the right of withdrawal is not provided?
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Since the trader did not deliver the consumer a form for exercising the right of withdrawal, the obligation of prior information and provision of said document was considered to be breached, thus the consumer had a period of 3 months (currently 12) for exercising his right of withdrawal.